Many media outlets have reported on the lawsuit, but none have assessed its legal merits.

LASIS zooms in.

Debbie Jo Lashaway was charged with theft in August 2011. The charges against her were eventually dismissed, so she decided to sue the fellow who filed the bogus theft charges against her – and she won. But her mug shot stubbornly lingers on in cyberspace.

The charges against him were dropped, but his mug shot remains online. He says he suspects that he’s lost many potential clients because of it. If it’s the first thing that came up in a Google search for him, we’d wager that it’s a certainty that he has a smaller client roster than he otherwise would.

These are just two of the plaintiffs to the class action alleging thatthat the websites trolling public records for mug shots and posting them on their websites for monetary gain have infringed on the plaintiff’s “right to publicity.” The plaintiffs are seeking “temporary or permanent injunctive relief” and “actual damages, including any profits derived from and attributable to the unauthorized use of an individual’s persona for a commercial purpose.”

However, in 2004 an Ohio District Court ruled that exceptions exist to the right to publicity. The Ohio court cited a 1944 Florida Supreme Court case that stated, “One of the primary limitations upon the right of privacy is that this right does not prohibit the publication of matters of general or public interest, or the use of the name or picture of a person in connection with the publication of legitimate news.” This appears to support the websites case since they should be able to argue that they are serving a public interest by providing easier access to public records.

But one could argue these sites aren’t serving a public interest. Because in that same Ohio case, the court said “public or general interest…does not mean mere curiosity”. The mug shots of people like Ms. Lashaway and Mr. Kaplan seem to pander to the merely curious, the “inquiring” minds that want to know.

Of course, especially these days, the line between “public interest” and “mere curiosity” is affine one. But in a society that values the presumption of innocence, one would hope that no public interest is being served by tarnishing people’s reputations. That’s an easier argument to make for people who were arrested when charges were dismissed. Anyone actually convicted of a crime may crime have a harder time arguing her case.

Lets now take a look at the extortion claim through our legal lens.

The Ohio Extortion statute states that no person shall “expose or threaten to expose any matter tending to subject any person to hatred, contempt, or ridicule or to damage any person’s personal or business repute” for anything of value.

The plaintiffs have support in a 1984 Ohio Court of Appeals case, which determined that just because something is true doesn’t mean that someone can use that truth as a defense to the crime of extortion. In this case, it is true that the individuals were arrested and photographed. As the Court of Appeals might reply — So what?

In reality, the websites aren’t exposing anything or anyone. Rather, the mug shots are public records that anyone could find if they knew where to look. The websites are simply putting the pictures into focus, if you will. This might not sound ethical. But it may well be legal.

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About Legal As She Is Spoke

Legal As She Is Spoke is an online project of the Program in Law and Journalism at New York Law School. Our site reports on the state of legal journalism and encourages conversation about the accuracy and felicity of reporting on law. For an explanation of our name, click here.

The Guilty Prosecutor

Last year, LASIS reporter Halina Schiffman-Shilo wrote about her experiences with the UN from Arusha, Tanzania. She's back in the urban jungle now, and is examining human rights abuses here at home, by district attorneys against innocent defendants. Enter, the Guilty Prosecutor.